University of Amsterdam Law Faculty
LEGALITY OF ATTACKS CONDUCTED BY THE USE OF EXPLOSIVE WEAPONS UNDER INTERNATIONAL HUMANITARIAN LAW
The Case of Syria
Jasmin Mäkinen
Supervisor: dhr. mr. J.C. (Jeroen) van den Boogaard Amsterdam, the Netherlands
ABSTRACT
The use of explosive weapons in populated areas can be considered as an unacceptable risk to the civilian population. Particularly in the conflict taking place in Syria, the use of explosive weapons is of major concern, raising questions regarding the legality of attacks in regard of sufficient accuracy and limitation of effects in accordance with the requirements set by international humanitarian law.
The conversation must not only be about the weapons themselves, but also about the way of use. This thesis analyses the legal issue of the use of explosive weapons in the Syrian conflict under the rules of international humanitarian law. The first chapter is mainly a descriptive one, providing for an overview of the Syrian conflict; the main actors responsible for explosive violence and the most commonly used explosive weapons. The following chapter analyses and describes both, the inherent legality of the explosive weapons as means of warfare and the use of explosive weapons as a method of warfare in the light of the relevant legal framework. The last chapter takes a more evaluative approach to the current legal framework and its applicability to the contemporary issue of the use of explosive weapons, particularly in Syria. While the situation in Syria remains tense, there is a need for a stronger prohibition of direct attacks against civilians and civilian objects, especially when it comes to attacks carried out with explosive weapons in populated areas. One of the main arguments discussed is that the obligation to take all foreseeable reverberating effects into account in targeting process should be given more attention, being essential when calculating the compliance with other obligations in targeting. Although there are no legal rules having the ability to replace human judgment, eliminate human error, or prevent armed conflicts from claiming civilian lives, if it is possible to take steps towards greater protection of civilians and make progress in superior guidance to those using explosive weapons, then it should be pursued.
This thesis does not attempt to assert that all use of explosive weapons in populated areas are necessarily illegal under international humanitarian law. Rather, the point made is that the civilian harm could be reduced by giving more practical consideration to the weapons by developing a solid position aiming to limit the use of explosive weapons with wide area effects and reach an agreement in order to facilitate halting the use thereof.
TABLE OF CONTENTS
INTRODUCTION...2
I. USE OF EXPLOSIVE WEAPONS IN SYRIA...4
1.1. Conflict background and actors responsible for explosive violence...4
1.1.1. Governmental forces and their Allies...5
1.1.2. Non-State Actors...6
1.2. Typology of the armed conflict in Syria...6
1.3. Most commonly used explosive weapons in Syria...7
1.3.1. Impact on highly populated areas...7
II. LEGALITY OF ATTACKS CONDUCTED BY THE USE OF EXPLOSIVE WEAPONS...11
2.1. Applicable law to the conflict...11
2.2. Inherent legality of explosive weapons as means of warfare...12
2.2.1. Problematic technological category...13
2.2.2. Regulation through international treaties...14
2.2.3. Regulation through customary international law...15
2.3. Inherent legality of the use of explosive weapons as a method of warfare...16
2.3.1. Obligations in targeting...17
2.3.1.1. Prohibition of indiscriminate attacks – principle of distinction...17
2.3.1.2. Prohibition of disproportionate attacks...19
2.3.1.3. Obligation to take all the feasible precautions...21
2.3.1.4. Obligation to take all the foreseeable reverberating effects into account...22
2.4. Targeting civilians as a strategy of war...24
III. VIABILITY OF THE EFFORTS TO LIMIT THE ATTACKS CONDUCTED BY THE USE OF EXPLOSIVE WEAPONS...26
3.1. Sufficiency of current legal framework...26
3.1.1. Need for a stronger international norm...26
3.1.2. Possibility of wide interpretation...28
3.3. Reframing conventional attitudes...30
3.3.1. Towards a more impact-centric approach...31
3.3.2. Strengthening the status and protection of a civilian against indiscriminate attacks ...31
3.3.3. Developing the targeting process...33
CONCLUSION...35
BIBLIOGRAPHY...37
INTRODUCTION
According to the International Committee of the Red Cross (‘ICRC’), “the conflict in Syria is the largest and most complex humanitarian crisis in the world, with no end in sight”.1 The
pattern of explosive violence in Syria is of grave concern, especially when talking about weapons of this nature having wide-area effects2, tending to cause harm also beyond the
targeted area. In the absence of an authoritative definition for “explosive weapons”, this thesis relies upon an illustrative list set forth by the United Nations Secretary-General (‘UNSG’), including “artillery shells, missile and rocket warheads, mortars, aircraft bombs, grenades and improvised explosive devices”3. Regarding explosive weapons, two things are usually
highlighted: varying launching possibilities and the part of a weapon containing high-explosive material, also referred to as the high-explosive munition.4 The inherent features in
explosive weapons make them also prone to cause civilian harm. Syria, together with Iran, has remained amongst the worst impacted countries for years and have consistently retained their highest number of civilian casualties from explosive violence.5
Particularly in Syria, the massive use of explosive weapons represents the greatest threat to civilian population: they account for 80% of recorded casualties.6 This gives an indication of
the type of warfare taking place in Syria showing the high intensity. While the conflict in Syria has entered its seventh year7 and tragic events with devastating consequences are
frequently reported, questions of legality of the attacks conducted by the use of explosive violence seem, however, to stay ignored.
1 International Committee of the Red Cross (‘ICRC’), ‘Syria Crisis’ (ICRC; last updated 24 May 2017) <https://www.icrc.org/en/where-we-work/middle-east/syria> accessed 30 May 2017.
2 Explosive weapons with wide area effects include: weapons that employ an individual munition with a large destructive radius – i.e., with large blast and fragmentation range or effect; weapon systems with inaccurate delivery systems and weapon systems designed to deliver multiple munitions over a wide area.
3 United Nations Security Council (‘UNSC’), Report of the Secretary-General on the Protection of Civilians in Armed Conflict (22 May 2012), UN doc S/2012/376, para 35.
4 Maya Brehm, ‘Protecting Civilians from the Effects of Explosive Weapons, An Analysis of International Legal and Policy Standards’ (UNIDIR 2012/8) 11.
5 Jennifer Dathan, ‘Explosive Truths. Monitoring Explosive violence in 2016’ (Action on Armed Violence (‘AOAV’) April 2017), 2; Syria has encountered further rise in death and injuries from explosive violence, over 15,000 deaths and injuries in 2016, making it 51% more than in 2015.
6 Handicap International, ‘The use of explosive weapons in Syria, A time bomb in the making’ (Case Study May 2015) 4.
7 Human Rights Council (‘HRC'), ’Human rights abuses and international humanitarian law violations in the Syrian Arab Republic, 21 July 2016- 28 February 2017’ (Conference room paper of the Independent International Commission of Inquiry on the Syrian Arab Republic, 10 March 2017) UN Doc A/HCR34/CRP.3, para 7.
Both modern and not-so-modern armies have relied on different types of explosive weapons to conduct military operations, not just on assault rifles and machine guns. When civilians are killed or wounded as a result of fighting, it is usually this type of weapons inflicting the harm.8 The use of explosive weapons is allowed only when complying with the relevant rules
of international humanitarian law (‘IHL’), a branch of international law designed to regulate the conduct of parties to the armed conflict. Even if IHL was considered as a tool for humanising war by imposing humanitarian limits on the conduct of hostilities, its effectiveness would depend, however, on its capacity to protect.9
Is the current regulatory framework sufficient enough to protect civilians from the effects of the use of explosive weapons? The civilian harm frequently reported raises questions regarding the legality of attacks – whether they can be used to target military objectives in populated areas with enough accuracy and whether their effects can be limited as required by IHL. The conversation must not just be about the weapons themselves, but also about their use.
This thesis examines the legal issue of the use of explosive weapons in Syria, especially in the populated areas, in the light of relevant provisions of IHL. The first chapter provides for a descriptive overview of the Syrian conflict; the actors responsible for the explosive violence and the most commonly used explosive weapons. While the focus of this thesis is not on the classification of the conflict taking place in Syria, it is also considered in regard of the applicable law. The second chapter analyses the current legal framework firstly in regard of the inherent legality of explosive weapons and their regulation through international law and customary IHL as a type of weapon and secondly, the legality of their use in accordance with the obligations in targeting process. The last chapter on the viability of the efforts to limit the attacks conducted by explosive weapons analyses and evaluates the sufficiency of the current legal framework, discussing also how and whether it could be possible to reframe the conventional attitudes towards the attacks conducted by the use of explosive violence.
8 Stephen Goose and Ole Solvang, ‘Deadly cargo: explosive weapons in populated areas’ (Human Rights Watch
(‘HRW’), 30 December 2014)
<https://www.hrw.org/news/2014/12/30/deadly-cargo-explosive-weapons-populated-areas> accessed 29 May 2017.
9 Chris af Jochnick and Roger Normand, 'The Legitimation of Violence: A Critical History of the Laws of War', (1994) 35 Harvard International Law Journal 49, 56.
I. USE OF EXPLOSIVE WEAPONS IN SYRIA
According to researchers of Handicap International, it is an established fact that explosive weapons are the most commonly used weapons in Syria and have been involved in more than 4 out of 5 reported incidents.10 The use of explosive weapons in populated areas11 is the main
cause of civilian deaths which becomes evident from a study released by the Integrated Regional Information Network in 2012. According to Handicap International, the use of explosive weapons in populated areas was responsible for 48% of civilian casualties.12 That
figure rose to 83% in 2016.13 Whilst the types of explosive violence used in the Syrian soil
and actors responsible thereof are diverse, according to a recently published report by Action on Armed Violence (‘AOAV’), State actors are responsible for the majority of explosive violence.14
This chapter provides an overview of the Syrian conflict, consisting of the discussion on the actors responsible for the explosive violence and typology of the on-going armed conflict in Syria, followed by an insight for the explosive weapons used and their impact.
1.1. Conflict background and actors responsible for explosive violence
Over years, the uprising in February-March 2011 has evolved to a series of armed conflicts involving myriad contending parties, both State and non-State actors.15 Hundreds of armed
groups have been reported as being active in the Syria conflict, of which majority primarily on a local level.16 Nevertheless, the main parties to the conflict can be identified. Since the
10 Handicap International, ‘New Report: Explosive weapons in Syria, A time bomb in the making’ (Handicap
International 2017) <
http://www.handicap-international.us/new_report_explosive_weapons_in_syria_a_time_bomb_in_the_making> accessed 9 June 2017.
11 Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (‘AP I’), art. 51(5)(4); “Populated area” is synonymous with “concentration of civilians”, which is defined under IHL as “a city, town, village or other area containing a similar concentration of civilians or civilian objects”.
12 Handicap International, ‘Qasef: Escaping the bombing – The use of explosive weapons in populated areas and forced displacement: perspectives from Syrian refugees’ (Study 2016) 30.
13 Handicap International, ‘NEW REPORT: VIOLENT ATTACKS FORCING MILLIONS OF SYRIANS TO FLEE’ (Handicap International, 28 September 2016)
<http://www.handicap-international.us/new_report_violent_attacks_forcing_millions_of_syrians_to_flee> accessed 29 May 2017.
14 Dathan (n 5) 13.
15 For an overview of the conflict in Syria, see Rulac, ‘Involvement in Armed Conflicts: Syria’, (RULAC, last updated 7 April 2017), <http://www.rulac.org/countries/syria> accessed 3 June 2017.
beginning of the uprising in March 2011, governmental forces together with its militias have been using extensive lethal force17, this being the main reason why opposition started arming
themselves, followed by the creation of the Free Syrian Army in June 2011. Shortly after, the government forces began to strike residential areas perceived to be controlled by opposition groups.18
1.1.1. Governmental forces and their Allies
The Syrian government receives support from a large pro-government militia, the National Defence Forces, organized by the government with Iranian Assistance. Thus, apart from the Syrian Army, the government relies on the support provided by irregular and foreign forces.19
President Bašar al-Assad has openly defended the involvement of foreign fighters alongside the governmental troops. Accordingly, there are two States having military forces in active support of the Syrian Government; Iran, claimed to have close ties with the Syrian government in direct support of Syrian military operations in the form of providing training, military advice and financial support20, and the Russian Federation.21 Involvement of external
actors has contributed to an increase in violence and extremism leading to further fragmentation of political and military sceneries.22 Government forces have carried out
deliberate attacks against civilians since 2011, and due to their superior firepower, they can be claimed to hold responsibility for most of the aerial attacks on for instance, civilian-inhabited cities.23
17 E.g. UNSC Res 2042 (14 April 2012) UN Doc SC/10609; UNSC Res 2043 (21 April 2012) UN Doc S/RES/2943; UNSC Res 2118 (27 September 2013) UN Doc S/RES/2118; UNSC Res 2139 (22 February 2014) UN Doc S/RES/2139; UNSC Res 2165 (14 July 2014) UN Doc S/RES/2165; UNSC Res 2191 (17 December 2014) UN Doc S/RES/2191; UNSC Res 2209 (6 March 2015) UN Doc S/RES/2209; UNSC Res 2254 (18 December 2015) UN Doc S/RES/2254; Presidential Statements: UNSC Statement (3 August 2011) UN Doc S/PRST/2011/16; UNSC Statement (21 March 2012) UN Doc S/PRST/2012/6; UNSC Statement (5 April 2012) UN Doc S/PRST/2012/10; UNSC Statement (2 October 2013) UN Doc S/PRST/2013/15; UNSC Statement (24 April 2015) UN Doc S/PRST/2015/10; UNSC Statement (17 August 2015) UN Doc S/PRST/2015/15.
18 HRC, ‘Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, (23 November 2011) UN Doc A/HRC/S-17/2/Add.1, para 29.
19 THE CARTER CENTER, ‘Syria: Pro-government Paramilitary Forces’ (CARTER CENTER Project 2013), <
https://www.cartercenter.org/resources/pdfs/peace/conflict_resolution/syria-conflict/pro-governmentparamilitaryforces.pdf> accessed 3 June 2017.
20 Sam Dagher and Asa Fitch, ‘Iran Expands Role in Syria in Conjunction with Russia’s Air- strikes’ (WALL
STREET JOURNAL, 2015) <http://www.wsj.com/articles/iran-expands
-role-in-syria-in-conjunction-with-russias-airstrikes-1443811030> accessed 31 May 2017.
21 Maria Tsvetkova, ‘Russian Soldiers Geolocated by Photos in Multiple Syria Locations, Bloggers Say’ (REUTERS, 8 Novermber 2015), <http://www.reuters.com/article/us-mideast-crisis-syria-russia-idUSKCN0SX0H820151108> accessed 28 May 2017.
1.1.2. Non-State Actors
In 2015 the situation on the ground became more fragmented and complex leading to the polarization of regional actors. Extremist groups, such as ISIS and Jabhat al-Nusra, gained more power, causing a significant exacerbation of the sectarian dimension of the conflict by imposing extreme religious beliefs in the areas of their direct control. Moreover, heavy operations of external powers and international coalitions on the ground have resulted in a multiplication of frontlines, battlefields and civilian harm.24 In 2015, opposition groups
enjoyed the logistical, financial and military support given by external actors, by for instance the United States, the leader of the international coalition. Subsequently, President al-Assad was faced with a loss of territory for anti-government groups.25
1.2. Typology of the armed conflict in Syria
There is little doubt that a threshold of sustained violence has been reached and that civil unrest in Syria spiralled into a civil war during the early years of the conflict.26 There are two
recognized types of armed conflicts governed by their own legal regimes, international (‘IAC’) and non-international (‘NIAC’). In early 2012, ICRC qualified the violence in Syria as non-international in nature, thus determining the applicability of IHL.27 Common Article 3
to the Geneva Convention28 includes reference to a ‘conflict not of an international character’,
but does not provide for a definition. According to The International Criminal Tribunal for the Former Yugoslavia (‘ICTY’), NIAC can be found to exist when there is “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State”29. Since 2012, however, the conflict has intensified, becoming a
“multi-23 HRC, ‘Oral Update of the Independent International Commission of Inquiry on the Syrian Arab Republic’ (23 June 2015), A/HRC/29/CRP.3.
24 Marta Bitorsoli, ‘THE SYRIAN SITUATION - International Humanitarian Law Violations and the Call for Justice’, (AL-MARSAD - Arab Human Rights Centre in Golan Heights, August 2016) 27.
25 Ibid., 52.
26 ICRC, ‘Annual Report’ (2012) 1, 443-444.
27 ICRC, ‘Syria: ICRC and Syrian Arab Red Crescent maintain aid effort amid increased fighting’ (ICRC, Operational Update 17 July 2012), <https://www.icrc.org/eng/resources/documents/update/2012/syria-update-2012-07-17.htm> accessed 27 May 2017.
28 1949 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (12 August 1949) 75 UNTS 31, entered into force 21 October 1950; 1949 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (12 August 1949) 75 UNTS 85, entered into force 21 October 1950; 1949 Geneva Convention (III) Relative to the Treatment of Prisoners of War (12 August 1949) 75 UNTS 135, entered into force 21 October 1950; 1949 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (12 August 1949) 75 UNTS 28, entered into force 21 October 1950.
29 Tadić Case (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), IT-94-1-AR72 (2 October 1995) para 70; Tadić Case (Judgment), IT-94-1-T (7 May 1997) para 562.
sided and highly fluid war of attrition”,30 in which Syrian and foreign armed groups fight
together with international coalitions and external powers. There are differing views concerning the internationalized character of the conflict. While some consider it as unquestionable31, it has been argued that there are several on-going armed conflicts, all
non-international in character.32
1.3. Most commonly used explosive weapons in Syria
Explosive violence in Syria comprises of all three categories: air-launched weapons33,
ground-launched explosive weapons34 and improvised explosive devices35. In regard of all these types
of explosives, Syria has been one of the top countries with the highest number of civilian casualties.36 The majority of civilian casualties from air-launched explosive weapons in 2016
was recorded in Syria. While these kinds of attacks have encountered a significant increase over the past year, the identification of perpetrators is not always clear. Both Russian and Syrian planes have been reported to launch raids against similar targets, but Russian involvement tends to be occasionally denied. However, the significant levels of civilian harm are unquestionable.37
1.3.1. Impact on highly populated areas
The concern about attacks with explosive weapons from a long distance, especially from the air, was reflected already in the 1899 and 1907 Hague Conventions. The Regulations annexed to the 1907 Hague Convention IV prohibit the bombardment of towns, villages, dwellings, or buildings “which are undefended.”38 Later, the League of Nations Assembly recognized that
30 Statement by Mr. Paulo Sérgio Pinheiro, Chair of the Independent International Commission of Inquiry on
the Syrian Arab Republic, (Geneva, 23 June 2015)
<http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?
NewsID=16128&LangID=E#sthash.l0hG5KMM.dpuf> accessed 3 June 2017.
31 Bitorsoli (n 24) 30.
32 Gill (n 16).
33 A wide variety of ordnance; from bombs dropped out of planes to missiles fired by unmanned drones.
34 Manufactured conventional ordnance ranging from hand grenades to heavy artillery.
35 Explosive weapons not manufactured through a commercial process.
36 See Dathan (n 5).
37 Dathan (n 5) 29.
38 Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land (18 October 1907), entered into force 26 January 1910, arts 25–27.
“any attack on legitimate military objectives must be carried out in such a way that civilian populations in the neighbourhood are not bombed through negligence.”39
The effects of an explosion are known to have the potential to affect a wide zone.40 Wide area
effects can result from three characteristics, either individually or in combination: a substantial blast and fragmentation radius resulting from an explosive content; inaccuracy of delivery and use of multiple warheads or multiple rings, sometimes designed to affect wide area.41 Additionally, the use of explosive weapons has both direct and indirect impact on
populated areas; it causes directly severe suffering to civilians, both in terms of death or serious injury and damage to property and infrastructure, which can in turn have long-term indirect effects to their well-being and survival.42 Furthermore, explosive remnants create a
potential additional threat.43
In Syria, shelling has been conducted in support of on-going sieges imposed on restive localities, in particular by State forces in Damascus and Homs city. Parties’ intensity of involvement, depended on their military capabilities, has varied respectively. However, more or less imprecise and unguided use of weapons raises many questions concerning the legality of these attacks, since even the use of conventional explosive weapons is designed for open battlefields, rather than urban, highly populated areas.44
In addition to conventional ammunition, the Air Force of Syria has increasingly used a new type of makeshift explosive devices – barrel bombs – described as “aerial projectiles” consisting “of storage tanks or sheet-metal cylinders packed with varied quantities of explosives and metal scrap”45. They were first used in Homs governorate in August 201246
and has been used ever since throughout the country with destructive consequences.47 Being
essentially improvised aircraft bombs, their problematic nature can be derived from their 39 League of Nations Assembly, ‘Protection of Civilian Populations against Bombing from the Air in Case of War, resolution’ (Assembly Resolution, 30 September 1938).
40 Brehm (n 4) 13.
41 PAX and Article 36, ‘Areas of harm, Understanding explosive weapons with wide area effects’ (October 2016) 8.
42 Richard Moyes, ‘Explosive Violence, The Problem of Explosive Weapons’ (Landmine Action, 2009) 32-36.
43 Protocol on Explosive Remnants of War (Protocol V to the 1980 CCW Convention), 28 November 2003.
44 Statement by Mr. Paulo Sérgio Pinheiro (n 30)
45 HRC, ‘4th report of the Commission of Inquiry on the Syrian Arab Republic’ (5 February 2013) UN Doc A/HRC/22/59, Annex XV.
46 HRC, ’9th Report of the Commission of Inquiry on Syria’ (5 February 2015) UN Doc A/HRC/28/69 para 14.
inaccurate method of delivery and lack of aerodynamic qualities, rendering landing unpredictable.48 Their high lethality and the level of damage they impose have given the
Government forces ability to prevent rebels from consolidating their control over territories and populations.49 The State forces have treated clearly distinct military objectives and highly
populated areas as a single military objective, amounting to area bombardment, violating IHL and having also impact extending beyond mass civilian casualties.50 It has been concluded in
7th Report of Commission of Inquiry on Syria, that when dropped from high altitudes, proper targeting is challenging.51 Furthermore, in many investigated incidents there was no evidence
on the existence of military targets.52
Another type of explosives used in the Syrian conflict is thermobaric munitions53, having also
“usual effects of an explosion”.54 What makes them different is the duration of each effect,
being greater than the equivalent of other conventional explosives. While a universally agreed definition for ‘thermobaric weapon’ is not easily found, it can be considered as “a type of explosive munition that utilizes ambient oxygen from the surrounding air to fuel an exceptionally high temperature explosion, which results in an enhanced blast effect of longer duration but lower peak pressures.”55 The use of thermobaric bombs was mentioned for the
first time in connection with an increased use of ‘even less precise weaponry’ by Syrian government forces and affiliated militias, civilians bearing the brunt of attacks, often indiscriminate ones.56
Examination of the explosive weapons used in Syria leads further to the question whether these attacks conducted using explosive weapons could be indeed considered as 48 PAX and Article 36 (n 41) 16.
49 Statement by Mr. Paulo Sérgio Pinheiro (n 30).
50 Barrel bombs have been dropped on e.g. markets, schools, medical facilities and squares.
51 HRC, ’7th Report of Commission of Inquiry on Syria’ (12 February 2014) UN Doc A/HRC/25/65, para 86 and Annex VI, Annex VI, para 8.
52 E.g. HRC, ‘Report of the Independent International Commission of Inquiry on the Syrian Arab Republic’ (13 August 2015) UN Doc A/HRC/30/48 paras 35-38; HRC, ‘Report of the Independent International Commission of Inquiry on the Syrian Arab Republic’ (5 February 2015) UN Doc A/HRC/28, para 238; HRC, ‘Selected testimonies from victims of the Syrian conflict’ (Conference Room Paper 16 September 2014) UN Doc A/HRC/27/CRP.1 5.
53 Syria and Russia have both been accused of using thermobaric bombs.
54 I.e. blast wave, overpressure, negative pressure and heat.
55 Kenneth Cross et al, ‘Explosive Weapons in Populated Areas: Technical considerations relevant to their use and effects’ (Armament Research Services ‘ARES’, May 2016) 25.
56 HRC, ’5th Report of the Commission of Inquiry on Syria’ (18 July 2013) UN Doc A/HRC/23/58 paras 21, 104.
indiscriminate under IHL. Indiscriminate attacks are prohibited under customary IHL57, being
those “which are not directed at a specific military objective; which employ a method or means of combat which cannot be directed at a specific military objective; or which employ a method or means of combat the effects of which cannot be limited as required by IHL; and consequently, in each such case, are of a nature to strike military objectives58 and civilians or
civilian objects59 without distinction.”60
Indiscriminate attacks have evolved as a legal concept with particular reference to the use of explosive weapons in populated areas.61 The fact that the majority of the attacks conducted by
the use of explosive weapons in Syria have occurred in densely populated areas indicates that the intention to distinguish between civilian population and infrastructure and military objectives has been, and is still, lacking. The following chapter will analyse the applicability of the current legal framework firstly to the explosive weapons and secondly, to the attacks conducted by the use of these weapons in regard of obligations in targeting. Some means or methods of warfare that could be lawfully used in particular circumstances might be rendered illegal when employed in populated areas.
57 ICRC, ’Customary IHL Database’, rule 11 <https://ihl-databases.icrc.org/customary-ihl/eng/docs/home> accessed 22 June 2017.
58 ICRC, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (‘AP II’), 8 June 1977, 1125 UNTS 609, art 52(2); ICRC Customary IHL (n 52) rule 8: definition of military objective.
59 ICRC (n 57) rule 9; AP I (n 11) art 52(1).
60 ICRC (n 57) rule 12.
II. LEGALITY OF ATTACKS CONDUCTED BY THE USE OF EXPLOSIVE WEAPONS
In order to limit the suffering caused by armed conflicts, IHL addresses both the behaviour of combatants and the choice of means and methods of warfare, including weapons.62 This basic
tenet of IHL contains principles and rules governing the choice of weapons, either prohibiting or restricting the use. This thesis analyses the principle of distinction, rule of proportionality, obligation to take all the feasible precautions as obligations in targeting in the context of the use of explosive weapons. Additionally, it is argued that the foreseeable reverberating effects of an attack form a significant part of the targeting process.
The use of explosive weapons is an issue of major concern in Syria. However, when it comes to the definition and regulation, determination of the pertinent rules is not always simple. Despite the distinct technological category and States’ reference to term “explosive weapons”, these weapons are not at the moment formally recognized as a distinct regulatory category under international law. There is no international instrument focusing specifically or exclusively on the regulation of explosive weapons, although some of them are considered conventional.63
2.1. Applicable law to the conflict
Assuming that the conflict in Syria remains non-international in nature, Common Article 3 to the Four Geneva Conventions and customary IHL would be applicable, being the most prevalent legal framework for NIACs. However, while Syria has both signed and ratified the Geneva Conventions, it has done so neither for the Second Additional Protocol to the Geneva Conventions (‘AP II’) nor, for instance, Convention on Certain Conventional Weapons, which prohibits or restricts the use of certain conventional weapons which are considered excessively injurious or indiscriminate by their effects. AP II is only applicable in armed
62 ICRC, ‘Weapons’ (30 November 2011) <https://www.icrc.org/en/document/weapons> accessed 20 May 2017; This principle is stipulated in the 1907 Hague Regulations Respecting the Laws and Customs of War on Land (n 38) art 22, and AP I (n 11) art 35(1).
63 Certain types of conventional weapons are restricted or banned completely under IHL, e.g. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (and Protocols) (As Amended on 21 December 2001), 10 October 1980, 1342 UNTS 137 (‘Convention on Certain Conventional Weapons’) and under Convention on Cluster Munitions (30 May 2008) 2688 UNTS 39, entered into force 1 August 2010.
conflicts taking place on the territory of a State that has ratified it.64 Accordingly, these latter
regulations do not directly apply to the actions of the Syrian State. Nonetheless AP II may still bind Syria since for the most part, it codifies customary law.65 Noteworthy is that the
obligation to respect IHL is not dependent on reciprocity and is thus borne by every armed group regardless the compliance by other actors.
There are two relevant strands of norms to discuss when assessing the legality of the attacks conducted by explosive weapons. Firstly, law governing the legality of the explosives as a type of weapon and secondly, regulations governing the conduct of hostilities, such as the prohibition of indiscriminate attacks, rule of proportionality and obligation to take all feasible measures. These both will be discussed below.
2.2. Inherent legality of explosive weapons as means of warfare
Although IHL in principle limits the choice of means and methods of warfare, it distinguishes between the “inherent” characteristics of a weapon and the ways of use. Most weapons are not unlawful as such. Thus, the difference is made with the way of use and the surrounding circumstances affecting the legality.66 Indeed, the fact that a weapon might consistently
produce civilian harm, even of a high level, has not been considered sufficient to prohibit the use, as long as the weapon could potentially be used in conformity with IHL.67 The
prohibition of the use of weapons that cannot be directed at a specific military objective, or the effects of which cannot be limited as required under IHL – the principle of distinction – serves as a basis for the ban on certain explosive weapons and restriction of others.68
64 ICRC, ‘Introduction, purpose of the study’ (ICRC, Customary IHL Database) <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_in> accessed 15 May 2017.
65 Michelle Mack, ‘Increasing respect for international humanitarian law in non-international armed conflicts’ (ICRC, Geneva, 2008) 9.
66 Philip Spoerri, ‘Round table on new weapon technologies and IHL – conclusions’ (34th Round Table on Current Issues of International Humanitarian Law, San Remo, 8–10 September 2011) <http:/www.icrc.org/eng/resources/documents/statement/new-weapon-technologies-statement-2011-09 13.htm> accessed 30 May 2017.
67 William Boothby, Weapons and the Law of Armed Conflict (OUP 2009) 80–3. Consider Rome Statute of the International Criminal Court (17 July 1998) UN Doc A/CONF.183/9, entered into force 1 July 2002 (‘Rome Statute’) art 8(2)(b)(xx), and the International Court of Justice, ‘Legality of the Threat or Use of Nuclear Weapons’ (Advisory opinion, 8 July 1996) para 95.
2.2.1. Problematic technological category
Though there are differences in composition, design and use, explosive weapons share certain fundamental characteristics.69 In order to understand the effects and humanitarian impact of
explosive weapons, it is beneficial to have basic knowledge of how these weapons function. Technically, explosive weapons can broadly be considered as weapons acting mainly through “blast and fragmentation”.70 These effects have the potential to affect military objectives and
civilians or civilian objects without distinction in the area around the point of detonation.71 As
with many other controversial weapons it is necessary to adopt the approach taken by the Trial Chamber in the Martić case and look at the specifics of the individual weapon on a case-by-case basis to determine whether it is the nature or the use making it indiscriminate.72
The issue of technological category can be illustrated by taking as an example perhaps the most common kind of explosive weapons used by the Syrian governmental forces – barrel bombs.73 Numerous bodies such as the Independent International Commission of Inquiry on
the Syrian Arab Republic, UNGA, United Nations Security Council (‘UNSC’), UNGA, and some individual States have expressed their concern, demanding cessation of such practice.74
When it comes to the weapon itself and its potential in regard of legal norms, could barrel bombs be considered falling under the 1980 Convention on Certain Conventional Weapons? Perhaps the only reasonable way would be to consider them to belong under the headline of “use on land of the mines, booby-traps and other devices”, subsequently under “other”. However, this interpretation seems to be too imprecise.75 The inherent indiscriminate nature of
any improvised weapon is however debatable.
69 International Network on Explosive Weapons (INEW), ‘Preventing human suffering from the use of explosive weapons in populated areas – the INEW call’ (INEW call commentary 2011), <http://www.inew.org/about-inew/inew-call-commentary> accessed 28 May 2017.
70 Brehm (n 4) 12.
71 ICRC (n 57) rule 13 is of particular relevance.
72 HRC, ‘Indiscriminate Attacks and Indiscriminate Weapons in International Humanitarian Law’ (Legal Note March 2016) 5; Martić Case (Judgement), IT-95-11 (12 June 2007) paras 462-463.
73 n 44-48.
74 UNSC Res 2139 (n 16) para 3; UNGA Res 70/234 (23 December 2015) UN Doc A/RES/70/234 paras 1-3, 19; UNSC, ‘Letter dated 18 June 2015 from the Permanent Representatives of Belgium, Luxembourg and the Netherlands to the President of the Security Council’ (19 June 2015) UN Doc S/2015/454.
75 Johannes Sender, ‘The legality of Barrel Bombs: A short analysis’ (European Network for Conflict Studies, 2 October 2015) <https://encsblog.wordpress.com/2015/10/02/the-legality-of-barrel-bombs-a-short-analysis/> accessed 31 May 2017.
2.2.2. Regulation through international treaties
While there are no comprehensive prohibitions regarding all explosive weapons, there is a general set of rules and guidelines prohibiting certain actions and methods under IHL. When deployed in the context of an armed conflict, they are subject to the rules of IHL, especially those regarding the conduct of hostilities established in the First Additional Protocol to the Geneva Conventions (‘AP I’), largely reflecting customary IHL.76
Some conventional weapons are regulated under the 1980 Convention on Certain Conventional Weapons, a treaty limiting the use of incendiary weapons as well as mines, booby traps and "other devices". It is the first treaty establishing framework to address the post-conflict hazards of unexploded and abandoned ordnance.77 According to the preamble,
States parties have based themselves “on the principle that prohibited the employment in armed conflicts of weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering”. Amendment in 2001 expanded the scope of the Convention to NIACs.78 While covering some types of explosive weapons, Syria and
Russia are neither parties to the Convention or its related Protocols. Especially barrel bombs have been considered violating IHL prohibiting the use of weapons that cause superfluous injury, unnecessary suffering or that are indiscriminate by nature when ”built as de facto incendiary weapons.”79
Several issues relating to the conduct of hostilities are regulated under the Hague Regulations80. These regulations are considered customary in IACs. Another example is
provided by the Declaration of St. Petersburg of 1868 stating, “that this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable; that the employment of such weapons would, therefore, be contrary to the laws of humanity”81. Being the first formal agreement of modern
international law to ban a specific type of weapon, it focused on the effects. Indeed, the ban
76 Identified as Customary International Humanitarian Law in Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol. I, Rules (ICRC and Cambridge University Press 2005)
77 ICRC (n 62).
78 Convention on Certain Conventional Weapons (n 62) Amendment article 1 (21 December 2001).
79 HRC (n 51) para 4.
80 Hague Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (29 July 1899), entered into force 4 September 1900.
81 The Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight (Saint Petersburg, 29 November / 11 December 1868), entered into force 11 December 1868.
on explosive bullets under contemporary customary IHL is based on the prohibition of employment of projectiles with explosive, fulminating or inflammable substances.82
The unregulated widespread availability of weapons contributes to violations of IHL hampering also delivery of vital assistance to war victims in conflict zones, being also a concern in Syria.83 The Arms Trade Treaty attempts to ”regulate the international trade of
conventional weapons for the purpose of contributing to international and regional peace, reducing human suffering, and promoting co-operation, transparency and responsible action by and among states.”84 However, neither Syria nor the United States and Russia are parties to
this treaty.
Despite the fact that some types of explosive weapons are covered by international treaties, there is neither a rule of IHL, nor a treaty, specifically focusing on the regulation on the use of explosive weapons in populated areas or explicitly setting requirement in regard of documentation of the impact of these attacks.85
2.2.3. Regulation through customary international law
The Statute of the International Court of Justice (‘ICJ’) describes customary international law as “a general practice accepted as law.”86 The existence of a rule of customary international
law requires two elements – State practice (usus) and a belief that such practice is required, prohibited or allowed, depending on the nature of the rule, as a matter of law (opinio juris sive necessitatis).87 Several rules of IHL are also considered to be customary due to
widespread, representative and virtually uniform practice of States accepted as legal obligation and thus binding all parties to conflicts.
While Treaty law is well developed in regard of warfare, according to the ICRC Study on customary IHL, there are impediments relating to the application of the treaties, making customary international law necessary. The fact that treaties apply only to the States that have 82 ICRC (n 57) rule 78.
83 ICRC (n 62).
84 Andrea Delgado, ‘Explainer: what is the Arms Trade Treaty?’ (The Conversation, 2015) <https://theconversation.com/explainer-what-is-the-arms-trade-treaty-37673> accessed 2 June 2017.
85 UNIDIR, ‘Use of Explosive Weapons in Populated Areas, Some Questions and Answers’ (Background Paper No 2, project by Maya Brehm and John Borrie, Summary 2010) 4.
86 Statute of the International Court of Justice (26 June 1945), 33 UNTS 993, entered into force 24 October 1945, art 38(1)(b).
ratified them limits their applicability and efficacy. While the four 1949 Geneva Conventions are universally ratified, the same is not true for the Additional Protocols. It may occur that the only humanitarian treaty provision applicable to NIACs is the Common Article 3. However, while being of fundamental significance, it only provides a rather rudimentary framework consisting of minimum standards.88 The most significant contribution of customary IHL to the
regulation of NIACs is that it goes beyond the provisions of AP II. Indeed, State practice has filled several important gaps.89 For instance, unlike the AP I, AP II does not contain specific
rules on principles of distinction and proportionality. State practice has filled largely these gaps in the regulation – in addition to the basic principles on the conduct of hostilities, the rules on specifically protected persons and objects and specific methods of warfare are included.90
The general principles prohibiting the use of weapons that cause superfluous injury or unnecessary suffering and weapons that are by nature indiscriminate were found to be customary in any type of armed conflict.91 The two criteria most frequently cited to determine
an indiscriminate weapon are “whether the weapon is capable of being targeted at a military objective and whether the effects of the weapon can be limited as required by international humanitarian law”92. Customary IHL also states that “Launching an attack which may be
expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.”93 There is, however, no consensus on what
exact weapons, if any, should be deemed ‘indiscriminate’ or use of which should be prohibited.
2.3. Inherent legality of the use of explosive weapons as a method of warfare
“The use of explosive weapons in populated areas does not attract a uniform applicable set of consequences.94” Whereas area bombardment is prohibited under customary law95, use of
88 Jean-Marie Henckaerts, ‘Study on customary international humanitarian law’ (2005) 87 International Review of the Red Cross 175, 177-178.
89 Ibid., 189.
90 E.g., ICRC (n 57) rules 7–10, rules 11–13, rule 14, rules 15–21, rules 22–24.
91 Henckaerts (n 88) 193.
92 ICRC (n 57) rule 71
93 Ibid., rule 14.
94 Brehm (n 4) 149.
explosive weapons in populated areas is not explicitly regulated.96 However, 77 States have
been reported to acknowledge harm caused in populated areas by the use of explosive weapons with references to the situation in Syria.97
The legal issue regarding the use of explosive weapons, especially in populated areas, is linked to the means and methods of warfare used to attack a legitimate target, namely, the rules on distinction, proportionality and precautions in attack. These rules, as set out in treaty and customary IHL, are applicable in any type of armed conflict.98 However, various
questions arise relating to the way these weapons are used, namely in regard of sufficient application of the principle of distinction, the rule of proportionality and sufficiency of precautions to be taken.99
2.3.1. Obligations in targeting
While the use of explosive weapons in populated areas is not explicitly prohibited under IHL, this thesis attempts to clarify that such use might violate the rule prohibiting indiscriminate attacks, the rule on proportionality and certain precautionary requirements also if the reasonably foreseeable reverberating effects of the attack are not taken into account.100
2.3.1.1. Prohibition of indiscriminate attacks – principle of distinction
The primary principle of IHL – the principle of distinction101 – has been plainly disregarded
in Syria by the armed groups involved, establishing that military attacks cannot be directed against civilians or civilian objects, but only against combatants who might include members of regular armed forces or armed groups participating in military operations.102 The
prohibition of indiscriminate attacks flows from this principle. Use of any weapon in an indiscriminate manner is obviously illegal likewise weapons indiscriminate by their nature.103
96 Brehm (n 4) 150.
97 INEW, ’77 states acknowledge harm caused by explosive weapons in populated areas’ (AOAV, 14 March 2017) <https://aoav.org.uk/2017/40-states-acknowledge-harm-caused-explosive-weapons-populated-areas/> accessed 1 June 2017.
98 AP I (n 11) arts 48(1), 51(1), 51(2), 51(5)(b), 57; ICRC (n 57) rules 1, 7, 14, 22.
99 John Borrie and Maya Brehm, ’Discourse on explosive weapons’ (UNIDIR, Research Project from January 2010 to April 2011) 3.
100 Isabel Robinson and Ellen Nohle, ‘Proportionality and precautions in attack: The reverberating effects of using explosive weapons in populated areas’ (2016) 98 International Review of the Red Cross 107, 109.
101 ICRC (n 57) rules 1 & 7.
102 Birtosoli (n 24), summary <http://golan-marsad.org/wp-content/uploads/The-Syrian-Situation-International-Law-Violations-and-the-Call-for-Justice-A-Summary.pdf> accessed 27 May 2017.
The pattern of attacks in Syria strongly suggests that pro-government forces intentionally and systematically target medical facilities, repeatedly committing the war crime of deliberately attacking protected objects.104 The rule concerning the loss of protection of civilian objects
must be read together with the basic rule that only military objectives may be attacked. It follows that when a civilian object loses its civilian character and qualifies as a military objective, it is liable to attack.105 Targeting of schools in Syria can be characterized also as a
common pattern of the conflict, estimated to account for half of all worldwide attacks on schools from 2011 to 2015. Whilst schools can lawfully be targeted when used for military purposes, there has been no evidence found that any schools lost their protection during the period investigated.106 According to Human Rights Council (‘HRC’), these attacks constitute
war crimes of deliberately targeting a civilian object and deliberately attacking civilians.107
IHL imposes upon all parties to an armed conflict, including non-state armed groups, a legal obligation to reduce unnecessary suffering of combatants and protect civilians and other people not falling under “combatant” status108. Under IHL, a civilian is defined by way of
exclusion, meaning, anyone who is not a member of the armed forces of a party to an armed conflict participating in military operations.109 Civilians lose their protected status and become
legitimate military objectives by taking directly part in hostilities. When in doubt, a person is to be considered a civilian. In Syria, deliberate attacks against civilians have been reportedly carried out with the intent to instil fear and terror among the population and/or as reprisals, both violating IHL.110 Indeed, what counts, is the intention. This can be deduced from the type
of weapons used – weapons ineffective for damaging military targets but potential to cause significant civilian casualties can indicate intent to terrorize.111
104 HRC, ‘Report of the independent international commission of inquiry on the Syrian Arab Republic’ (13 August 2014) A/HRC/27/60, paras 109-111; HRC, ‘Report of the Independent International Commission of Inquiry on the Syrian Arab Republic’ (11 August 2016) A/HRC/33/55, paras 42-65; Human Rights Council, ‘Report of the Independent International Commission of Inquiry on the Syrian Arab Republic’ (2 February2017) A/HRC/34/64, paras 30-40.
105 ICRC (n 57) rule 10.
106 HRC (n 7) para 20.
107 Ibid., para 3.
108 Hague Convention (IV) (n 38) art 23(e).
109 AP I (n 11) art 50(1).
110 Birtosoli (n 102); “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population” are prohibited by Additional Protocol I (n 11) art 51(2).
Considering the typical effects of explosive weapons and their foreseeable impacts on persons and structures in the target area or near the point of detonation, the rules mentioned above may be considered as an indication against the use of explosive weapons in the vicinity of civilians.112 Protection of civilians in this context is, however, limited. IHL distinguishes
between the prohibited intentional harm to civilians, and incidental civilian harm, which it accepts as a side-effect (‘collateral damage’) resulting from an otherwise lawful attack — provided that the principle of proportionality is respected.113 The difference between
indiscriminate attacks and direct attacks lies in the fact that while the attacker is not necessarily aiming to attack civilian population or civilian objects as such, there are no concerns about the resulting injury114, thus equally violating the principle of distinction.115
Russia-Syria coalition’s failure to take necessary precautions and respect the rule of proportionality in order to limit collateral damage from its airstrikes and avoid hitting vital civilian infrastructure is documented by international organizations for instance.116
In an area where civilian objects and military objectives are mixed, the attacking party must distinguish between civilian and military objects with particular care. Only those objects that qualify as military objectives can be directly attacked with weapons capable of being deployed as required by IHL. Bombardment or any method or means that treat a number of clearly separated and distinct military objectives located in a city, town, village, or other area as a single military objective containing a similar concentration of civilians or civilian objects are without a doubt prohibited under IHL.117 According to Human rights Watch (‘HRW’),
however, if the weapon used is so inaccurate that it cannot be directed at military targets without imposing a substantial risk of civilian harm, it should not be deployed in the first place.118 Even when the objectives are not clearly separable, attacks remain governed by the
rule of proportionality.
112 UNIDIR Resources, ‘Explosive Weapons Framing the Problem’ (Background Paper No1 of the Discourse on Explosive Weapons (DEW) project1 by Maya Brehm and John Borrie, Summary April 2010) 2.
113 Additional Protocol I (n 11) art 51(5)(b).
114 Sten Verhoeven, ’The Protection of Civilian and Civilian Objects against Hostilities’ in Jan Wouters, Philip De Man and Nele Verlinden (eds), Armed Conflicts and the Law (Intersentia 2016) 281.
115 Galić Case (Judgment), IT-98-29, (5 November 2003), para 57, Martić case (n 73) para 463.
116 HRW, ’Russia/Syria: War Crimes in Month of Bombing Aleppo’ (HRW, 1 December 2016) <https://www.hrw.org/news/2016/12/01/russia/syria-war-crimes-month-bombing-aleppo> accessed 5 June 2017.
117 Knut Döermann, ‘Obligations of international humanitarian law’ (2012) 4 Military and Strategic Affairs 16; ICRC (n 56) rule 13.
118 ‘25 killed in Landikotal car bomb blast’ (The International News, 17 June 2012) <www.thenews.com.pk/Todays-News-13-15406-25-killed- in-Landikotal-car-bomb-blast> accessed 3 June 2017.
2.3.1.2. Prohibition of disproportionate attacks
Use of explosive weapons in areas where military objectives are in the vicinity of civilians or intermingling with civilian objects raises also concerns in regard of proportionality. Once a legitimate target of an attack has been properly identified, proportionality must be applied. It prohibits launching attacks “which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”119
Again, direct attacks against civilian population and civilian objects are prohibited and therefore, this rule becomes also relevant when military objectives are the intended targets. Even if a target is lawful, attacks conducted by the use of explosive weapons in populated areas can encompass civilians and be considered indiscriminate.120 In addition to the
prohibition of excessive civilian casualties and injuries the principle of proportionality prohibits also excessive damage to civilian objects. This seems to be often overlooked.121
Military advantage and civilian damage are not easily comparable in terms of proportionality. Is it even possible or humane to seek balance between something concrete in terms of loss of life and destruction and something more relative, such as the military value of an operation? While there remain some uncertainties in the interpretation of the rule of proportionality, there are also some clear limitations.122 When determining whether the consequences of an attack
would be excessive, only the “concrete” and “direct” “military” advantages can legitimately weigh in123, being however subject to debates among legal scholars and militaries. Whilst the
rule seems evident, the assessment of the proportionality of civilian losses to the military advantage is not without difficulties. When an important military objective is achieved, even an extensive civilian loss may be considered proportionate.124 The proportionality is always
subject to a good faith evaluation of the attacker on a case-by-case basis.125 Hypothetical,
119 ICRC (n 57) rule 14.
120 ICRC (n 57) rules 12 & 14.
121 Döermann (n 117) 17.
122 Ibid.
123 Michael N. Schmitt, ‘Precision Attack and International Humanitarian Law’ (2005) 87 International Review of the Red Cross 445, 457.
124 Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (CUP 2004), 121
125 Stefan Oeter, ’Methods and Means of Combat’ in Dieter Fleck (ed), The Handbook of International
indirect, and long term political advantages cannot be included in the calculation of military advantages – simply winning the war does not qualify for calculation of proportionality.126
Those planning to launch an attack must at all times take all feasible precautionary measures to spare as far as possible the civilian population.127 The ICRC has recognized
disproportionate attacks as particular forms of indiscriminate attacks – rendering the principles of distinction, proportionality, and precautions overlapping and closely linked to each other.128
2.3.1.3. Obligation to take all the feasible precautions
In order to ensure compliance with the rules of distinction and proportionality and constant care to be taken to spare civilian harm, IHL requires parties to an armed conflict to take precautions in attack.129 Precautionary requirements consist of verifying that the target is a
military objective;130 taking all feasible precautions in the choice of means and methods of
attack, with a view to avoiding, and minimizing, the expected incidental damage;131 refraining
from launching an attack that may be expected to violate the rule on proportionality;132 or
cancelling or suspending an attack if it becomes apparent that the target is not a military objective or enjoys special protection.133
One of the core precautions to be taken prior to an attack is advance warning. It must be given regarding attacks that may affect the civilian population, unless circumstances do not permit.134 The main requirement in this regard is that an advance warning must be “effective”
from the point of view of the civilians receiving it, providing civilians with the chance to protect themselves.135 A given warning does not however mean that an attack may
automatically proceed as it amounts to only one of the precautions under IHL. Principles of distinction and proportionality must still be assessed, and the attacker is obliged to take 126 Döermann (n 116) 17.
127 AP I (n 11) art 57(2); Galić Case (n 115) para 58.
128 ICRC (n 57) rule 12.
129 Robinson and Nohle (n 100) 112.
130 AP I (n 11) art 57(2)(a)(i); ICRC (n 57) rule 16.
131 AP I (n 11) art 57(2)(a)(ii); ICRC (n 57) rules 14 & 15.
132 AP I (n 11) art 57(2)(a)(iii); ICRC (n 57) rules 17 & 18.
133 AP I (n 11) art 57(2)(b); ICRC (n 57) rule 19 (no reference to objects “that are subject to special protection”. Additional precautionary requirements in AP I (n 11), arts 57(2)(c), 57(3) and 57(4); ICRC (n 56) rules 20 & 21.
134 ICRC (n 57) rule 20.
precautions in order to avoid and minimize the incidental loss and damage.136 Both,
governmental and anti-government fighters, have carried out attacks in Syria intended to spread terror and punish the civilian population, without any precautions taken to avoid or minimize incidental loss of civilian life.137
While the obligations discussed here are focused mainly of those of the attacking party, it is equally important to mention, that the party being subjected to attack is also obliged to take precautions to protect civilians from the effects of attack, by avoiding locating military objectives within or near densely populated areas where circumstances permit. They must also endeavour to remove a civilian population from the vicinity of military objectives.138 While
these rules seem to be violated on a frequent basis in contemporary armed conflicts, also in Syria, respect for IHL is not dependent on reciprocity, thus not releasing parties from their own obligations.139 Subsequently, in certain circumstances, where there are no alternative
means or methods of attack which would minimize incidental civilian damage, the only feasible option is to refrain from launching an attack that would be disproportionate or indiscriminate140, since IHL must be respected even in the absence of alternative or more
discriminate tactics.141
Parties to a conflict are also required to take all feasible precautions to avoid, and in any event to minimize, incidental damage to the environment, as it is considered as to be a civilian object142 and is as such protected by the same principles and rules that protect other civilian
objects. Lack of scientific certainty as to the effects on the environment of certain military operations does not absolve a party to the conflict from taking such precautions.143 In addition
to take all feasible precautions, the attacking army is obligated to pay attention also to the foreseeable reverberating effects of the attack.144
136 Döermann (n 117) 19.
137 Bitorsoli (n 24) 54.
138 AP I (n 11) art 57(7).
139 ICRC, ‘Explosive Weapons in Populated Areas: Humanitarian, Legal, Technical and Military Aspects’ (Expert Meeting, Chavannes-de-Bogis, 24-25 February 2015) 18.
140 Robinson and Nohle (n 100) 144.
141 ICRC, ’Explosive weapons in populated areas’ (Factsheet June 2016) 2.
142 ICRC (n 57) rule 45.
143 ICRC (n 57) rule 44.
2.3.1.4. Obligation to take all the foreseeable reverberating effects into account
While there is growing consensus that parties to an armed conflict are legally obliged to take into account the reasonably foreseeable reverberating effects145, the precise scope of this
obligation remains unclear.146 While international debate concerning this legal obligation has
evolved significantly over the years, there is still no universal consensus.147 They are probably
less visible, but equally devastating effects of the use of explosive weapons meaning those effects “that are not directly and immediately caused by the attack, but are nevertheless the product thereof.”148 Thus, it can be argued that these effects should be focused on more
comprehensively. This thesis suggests that reverberating effects should be taken into account in targeting process in order to minimize harm caused to civilians and civilian objects.
Greater accuracy and precision in weapons systems or greater capacity to calculate incidental damage may increase the possibility to minimize the reverberating effects. However, it must be emphasized that the obligation to incorporate the foreseeable reverberating effects of an attack into targeting assessment is not solely dependent on the level of technology. Assessment of foreseeable reverberating effects does not require rather sophisticated means of measuring incidental damage from a military, especially when it comes to civilian objects.149
As elaborated earlier, assessment of expected incidental damage arising from attacks has to be factored in regard of the rule of proportionality and precautionary measures. According to the ICRC, reverberating effects are included in the incidental damage.150 Commanders are obliged
to consider both and weigh them up against the military advantage that can be anticipated from the attack under the rule of proportionality and precautions in attack.151 It is argued that a
trained eye should be able to locate essential infrastructure having significant reverberating
145 Third Review Conference of the High Contracting Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to Have Indiscriminate Effects: Part II (2006) (CCW/CONF.III/11) 4. E.g., States party CCW have accepted the relevance of foreseeable reverberating effects in relation to explosive remnants of war.
146 Robinson and Nohle (n 100) 107.
147 Michael N. Schmitt, “The Law of Targeting”, in Elizabeth Wilmshurst and Susan Breau (eds), Perspectives
on the ICRC Study on Customary International Humanitarian Law, (Cambridge University Press, Cambridge,
2007) 131, 159.
148 Michael N. Schmitt, ‘Wired Warfare: Computer Network Attack and Jus in Bello’ (2002) 84 International Review of the Red Cross 365, 392.
149 Robinson and Nohle (n 100) 141.
150 ICRC, ‘International Humanitarian Law and the Challenges of Contemporary Armed Conflicts’ (ICRC conference report for the 32nd International Conference of the Red Cross and Red Crescent, Geneva, 2015) 42.
effects for civilians in a case of destruction.152 Whilst there tends to be limited information in
current military policy and practice concerning the requirement of armed forces to take into account the reverberating impact when deploying explosive weapons with wide area effect153,
there are indications concerning increasing State practice in this context154. Conclusively, this
might lead in the direction where taking reverberating effects into account could be understood equivalently to customary IHL rules on proportionality and precautions.155
Assessment of the foreseeable reverberating effects of an attack may require external support such as technical expertise, including from engineers and/or public health experts which is not, however, available on a regular basis for every militias.156 Furthermore, there are still
plenty of uncertainties when it comes to the scope of application. There has been a debate concerning which one – or all – of the limits needs consideration, causal, temporal or geographical.157 Also, it is impossible to foresee all possible reverberating effects, some
commentators doubting the relevance based on the fact that there are “too many factors that are incapable of assessment at the time the attack.”158 This reality should be reflected by a
reasonable legal standard acknowledging that some reverberating effects are too remote to be considered at the time of an attack.159
Reverberating effects resulting from attacks are highly significant aspect in targeting process and should be given more attention. Consideration of the reverberating effects could be seen also as a basis for other obligations in targeting – when taking them into account before launching an attack, it helps to act in compliance with other obligations such as proportionality.
152 ICRC (n 139) 16.
153 Robinson and Nohle (n 100), 133
154 Third Review Conference of the High Contracting Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to Have Indiscriminate Effects: Part II (2006) (CCW/CONF.III/11) 4: E.g. States parties have accepted the relevance of foreseeable reverberating effects in relation to explosive remnants of war.
155 Robinson and Nohle (n 100) 115-116.
156 Isabel Robinson and Ellen Nohle, ‘War in cities: The ’reverberating effects of explosive weapons’ (Humanitarian Law & Policy, 2 March 2017) <http://blogs.icrc.org/law-and-policy/2017/03/02/war-in-cities-the-reverberating-effects-of-explosive-weapons/> accessed 14 June 2017
157 E.g. in Robinson and Nohle (n 100) 107-145.
158 Robinson and Nohle (n 100) 114.
